Wednesday 26 October 2016

Serious misconduct by a UK supplier of nutritional supplement products uncovered by Irish rival, Commercial Court hears

Published 04/04/2016 | 16:33

Photo: Getty Images/Ingram Publishing
Photo: Getty Images/Ingram Publishing

SERIOUS misconduct by a UK supplier of nutritional supplement products has been uncovered by an Irish rival which is being sued for alleged trade mark infringement, the Commercial Court heard.

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London-based Aymes International's principal Richard Wertheim Aymes instructed one of his senior employees to impersonate a UK National Health Service (NHS) representative to obtain information over the phone from Limerick-based rival Nualtra Ltd and which was later used in an attempt to undermine Nualtra's business, it is claimed.

As a result of the information Aymes obtained, a number of NHS employees were sent a forged email letter in November 2014 purporting

to be on behalf of the NHS, Nualtra says.

The letter, described by Nualtra's counsel Bernard Dunleavy as a "poison pen letter",  made serious allegations about Nualtra which the

Irish firm says were unfounded.

Nualtra obtained a court order in the UK in which it discovered the forged letter was sent by the senior Aymes director who had been

instructed by Mr Aymes to make the original phone call in which that employee posed as a person called "Chris Baker" in order to obtain the information. It later transpired there was no such person in the relevant NHS division, Nualtra says.

A second anonymous letter, also authored by Aymes, was sent to 848 GP practices in July 2015 again making what Nualtra says were damaging and unfounded allegations.

Arising from this second letter, Nualtra sued Aymes International and Richard Wertheim Aymes for defamation and the case was settled in the English High Court last November with an apology from the defendants, along with damages.

In the meantime, a case brought by a Dutch nutritional supplment product supplier, Nutrimedical BV, against Nualtra, for alleged

infringement of the "Nutriplen" trade mark, had come before the big business division of our High Court, the Commercial Court.  Aymes

International was later joined as a co-plaintiff with Nutrimedical.

Nualtra, which had fully denied any trade mark infringement, then counter-claimed saying Aymes was involved in a concerted efforts over

a prolonged period of time to undermine its business since the time Nualtra refused to licence its products bearing the "Nutriplen" name

to Aymes.

The case has been before the Commercial Court over discovery of documents in advance of the full hearing.

When the matter was mentioned before Mr Justice Brian McGovern today, Paul Coughlan BL said issues relating to discovery have now changed and the Nualtra side were also seeking what is known as a "wasted costs order" requiring Aymes to pay Nualtra's legal costs so far.

Bernard Dunleavy SC, for Nualtra, said while the solicitors for Aymes could have no blame attached to them for their client's instructions,

what had happened in this case had to be regarded as being "on the outer spectrum of serious misconduct".

The application for a wasted costs order would have to be considered in the context of the gravity of this misconduct and his side believed

it would take half a day to hear, he said.

Mr Justice McGovern adjourned the matter to next month.

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